采矿权转让法律制度研究与重构

发布时间：2018-08-08 10:50

【摘要】：随着市场经济的发展和矿业权市场的火爆,现行采矿权转让法律制度己不适应日趋活跃的采矿权转让市场的需要,采矿权转让法律制度的缺失和弊端日益暴露。本文结合工作中的案例与切身体会,本着求真务实的态度,以采矿权转让案例为研究背景,深刻分析采矿权转让面临的法律问题,主张现行采矿权转让法律制度应在现有宪政框架与当今市场经济发展需要之下进行改革,建立公平规范的采矿权转让市场。第一部分通过对我国采矿权转让制度的发展演变的历史回顾,通过对目前采矿权转让法律制度规定的分析,认为采矿权转让法律制度已经不适应日趋活跃的采矿权转让市场的需要,采矿权转让中的法律问题目益突出。第二部分阐述了采矿权转让的基本理论。包括采矿权的性质争议和采矿权转让的条件和形式。第三部分通过对目前学界关于采矿权转让相关法律问题的比较分析,结合工作中采矿权转让案例,深刻分析采矿权转让面临的法律问题。主要研究采矿权转让合同的生效问题,采矿权转让所涵盖的范围问题,采矿权转让中采矿权属争议问题,行政机关协助执行司法裁定的采矿权转让变更如何办理的问题,采矿权转让中的矿权抵押问题。第四部分进行采矿权转让法律制度的重构,主张采矿权转让制度应在现有宪政框架与当今市场经济发展需要之下进行改进,建立符合我国国情的采矿权转让法律制度。因此,现行采矿权转让法律制度可以通过完善立法实现法律重构。现行采矿权转让法律制度与日趋活跃的采矿权转让市场不相适应的矛盾可通过完善矿产资源相关法律法规,建立公平规范的采矿权转让秩序和监督机制得以化解。
[Abstract]:With the development of market economy and the popularity of mining right market, the current legal system of mining right transfer has not been adapted to the need of increasingly active mining right transfer market, and the lack and malpractice of mining right transfer legal system has been exposed day by day. This article combines the case and experience in the work, in the attitude of seeking truth and pragmatism, taking the case of mining right transfer as the research background, deeply analyzes the legal problems faced by the transfer of mining right. It is proposed that the current legal system of mining rights transfer should be reformed under the existing constitutional framework and the needs of the development of the market economy, and a fair and standardized market for the transfer of mining rights should be established. The first part through the historical review of the development and evolution of China's mining rights transfer system, through the analysis of the current legal system of mining rights transfer, It is considered that the legal system of mining right transfer has not been adapted to the need of the increasingly active mining right transfer market, and the legal problems in mining right transfer are prominent. The second part expounds the basic theory of mining right transfer. Including the nature of mining rights dispute and mining rights transfer conditions and forms. In the third part, the author makes a comparative analysis of the relevant legal problems in the transfer of mining rights in the academic circles at present, and analyzes the legal problems faced by the transfer of mining rights in the light of the cases of mining rights transfer in the work. Mainly studying the issue of the validity of the contract for the transfer of mining rights, the scope of the transfer of mining rights, the dispute over the ownership of mining rights in the transfer of mining rights, and the question of how to handle the alteration of the transfer of mining rights assisted by the administrative organs in the implementation of judicial decisions on the transfer of mining rights, The issue of the mortgage of mining rights in the transfer of mining rights. The fourth part is the reconstruction of the legal system of mining right transfer, which advocates that the mining right transfer system should be improved under the existing constitutional framework and the needs of the development of the market economy, and that the legal system of mining right transfer should be established in accordance with the national conditions of our country. Therefore, the current legal system of mining right transfer can be reconstructed by perfecting legislation. The contradiction between the current legal system of mining right transfer and the increasingly active mining right transfer market can be resolved by perfecting the relevant laws and regulations of mineral resources and establishing a fair and standardized order and supervision mechanism for the transfer of mining rights.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.62;D923;F426.1

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